Case: Ambar Tobacco Company, Moradabad Vs Flower Tobacco Company, Moradabad. Trademark Tribunal

CounselFor Appellant: Mr. Anoop Singh, Advocate and For Respondents: Mr. R.K. Anand, Advocate
JudgesM. R. Bhalerao, DRTM
IssueCivil Procedure Code, 1908 - Order 47 Rule 1; Order 23 Rule 3
Citation1982 (2) PTC 90 (Reg)
Judgement DateDecember 31, 1981
CourtTrademark Tribunal

Judgment:

M. R. Bhalerao, DRTM.

These proceedings relate to the review petition filed on TM-57 on 5th June, 1981 for review of the decision dated 23rd May, 1981 issued in Opposition No. DEL-3009 to Application No. 339005 in Class 54.

Hearing to consider the aforesaid review petition was posted for 26th November, 1981. Shri Anoop Singh, Advocate appeared for the Opponents/Petitioners. Shri Raj K. Anand, Advocate appeared for the Applicants/Respondents.

The material portion of the decision sought to be reviewed reads as follows:

"After some discussions, at the resumed hearing, the learned counsel for the Opponents desired to withdraw the Opposition. Thereupon, the learned counsel for the Applicants agreed to waive costs. Accordingly, the said Opposition is treated as withdrawn, with no order as to costs.

Application No. 339005 cannot proceed to registration as it is under Opposition No. DEL-3013."

The grounds of the petitions are found in paragraphs 6 to 10 of the Petition. These paragraphs read as under:-

  1. "Now, it transpired Mr. Kareer filed TM-7 on 21.5.1981 and withdrew the Opposition.

    That the withdrawal was without instructions as the Opponents never instructed Mr. Kareer in writing or verbally to withdraw the opposition.

  2. That the withdrawal is wholly misconceived.

  3. The Opponent user is since 1961, while the applicants claim to have used the mark since 1972. Even the said user is wrong. The Tribunal would have decided the case on merits accepting the opposition.

  4. The Opponents' trading under this mark and exporting goods of very huge amounts to gulf countries. The Registration of Trade Mark in favour of the applicant will completely oust the opponent from their export.

  5. Unless there was a withdrawal of opposition, the applicant could under no circumstances obtain registration of the mark."

    From the above paragraphs it is seen that the main ground in the review petition is that Opposition No DEL -- 3009 was withdrawn by the Counsel, though he was not authorised to do so. In his affidavit dated 21st October, 1981, Qamar Ahmed Khan has deposed as follows:

    "I say that I never authorised Shri K.C. Kareer, Advocate and never gave him the instructions to withdraw the opposition.

    I say that Shri K.C. Kareer had acted against the terms of Power of Attorney and my instructions.

    The absence of Shri K.C. Kareer on 20th May was not justified and was without any reason and was contrary to engagement.

    On the night of 20th May, 1981 when he...

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